Connecticut Baptist Convention v. Murphy

Ells, J. The plaintiff applied to the defendant, mayor of the city of New Haven, for approval of the location of a station for the sale of gasoline on premises it owned at the corner of two streets. The defendant denied the application and the plaintiff appealed to the Superior Court, which sustained the appeal. The defendant has appealed to this court. The defendant based his decision upon a hearing, a personal view of the premises and his knowledge of the situation by reason of the fact that he lives in the neighborhood. He filed no statement of the reasons upon which his decision was based. At the trial in the Superior Court, he testified as a witness and stated that he based his conclusions upon the amount of the vehicular traffic on the streets bordering the premises, the location of schools in the neighborhood, the fact that there was a bus stop at the corner and the reduction of parking space by reason of the establishment of a gasoline station at that point, and stated that because of these elements the establishment of the station would, in his opinion, cause a traffic hazard. The trial court made a very complete finding as to the facts relevant to these reasons, including the presence of four public schools in the immediate *263 neighborhood, having a total of about two thousand one hundred pupils. The property is now used by the plaintiff as a church; it plans to tear down the church building and sell the land on which it is located for proposed use as a gasoline station, and to make over a brick building in the rear into a church, Sunday school room and recreation center combined. The court concluded that none of the reasons given by the defendant for denying the application had a reasonable basis in fact, that no appreciable traffic hazard would result from the location of the station on the premises in question, and that the defendant acted unreasonably and arbitrarily. Our statutes in 1927 and ever since have provided in substance that no person shall sell or offer to sell gasoline or other product intended for use in propelling motor vehicles using combustible type engines without having received a license from the commissioner of motor vehicles; and that any person desiring to obtain such a license shall first obtain and present to the commissioner a certificate of approval of the location for which such license is desired from a specified local authority. Public Acts, 1927, Chap. 245; Public Acts, 1929, Chap. 280; General Statutes, Cum. Sup. 1935, § 646c; Cum. Sup. 1939, § 552e. It is now further provided that in any city or town having a zoning commission and a board of appeals the certificate shall be obtained from that board and that no such certificate shall be issued unless, upon a hearing after personal and public notice, the authority is satisfied that the location is suitable, considering the proximity of schools, churches, theaters or playhouses or other places of public gatherings, intersecting streets, traffic conditions, width of highway and effect on public travel and that the use will not imperil the safety of the public. These latter provisions had their *264 origin in the act of 1929 referred to above and the existing statutes are amendments to that act. It is specifically provided, however, that it shall not apply to the city of New Haven. These later provisions are not, therefore, in effect as regards the issuance of a certificate in that city. Glanz v. Board of Zoning Appeals of New Haven, 123 Conn. 311, 195 Atl. 186. This case must, therefore, be decided under the statutes as they stood before the changes made by the act of 1929 and the amendments to it, that is, under the provisions of the act of 1927. We considered the act of 1927 in DeFlumeri v. Sunderland, 109 Conn. 583, 145 Atl. 48, and held (p. 586) that it authorized a mayor to issue such a certificate after notice and hearing, that no statutory restriction whatever is imposed upon his action in issuing or refusing to issue such certificate; that he may refuse it if in his judgment the best interests of the community under the due administration of the law require such refusal, and that consideration of local interest and conditions determining his administrative policy may justify his action in any particular case which it would be impracticable for a court to ascertain and apply even if it could be lawfully burdened with such duties. We further said (p. 588) : “. . . the question here is not whether the trial court deemed these reasons sufficient to warrant the denial of the application, but whether the .action of the mayor was so devoid of any reason therefor as to render it arbitrary or so unreasonable as to be an abuse of discretion.” See also Holley v. Sunderland, 110 Conn. 80, 147 Atl. 300. The mayor’s action would still be subject to attack in this proceeding if it appeared that his denial of the certificate of approval was arbitrary or so unreasonable as to be an abuse of discretion. DeFlumeri v. *265 Sunderland, supra, 587. But the considerations he might take into account are much broader than the mere matter of traffic safety, which the trial court adopted as its test. DeFlumeri v. Sunderland, supra. Bearing in mind the broad scope of the discretion vested in the mayor, we can find in the record no sufficient support for the conclusion of the trial court that the defendant acted so arbitrarily or unreasonably as to constitute an illegal exercise of that discretion. An interesting question concerning the constitutionality of the 1927 act is stated in Holley v. Sunderland supra, 85, whether “ ‘the delegation of power to an ad-' ministrative official under a statute which does not lay down any rule to guide or restrain that power or to inform applicants on what terms a certificate of approval will be granted is unconstitutional.’ ” For the reasons there stated, and because in the present case the constitutional question was raised neither in the appeal to the Superior Court nor to this court, the question is not now before us. There is error, the judgment is reversed, and the case remanded to the Superior Court with direction to enter a judgment dismissing the appeal. In this opinion Avery and Jennings, Js., concurred.